Three Illinois State Workers Sue for Freedom from Unions

Governor gets support from economic liberty litigators.

Credit: Metropolitan Planning Council

In February, Illinois' Republican Gov. Bruce Rauner announced both an executive order and a lawsuit to force the state to stop requiring state employees to pay "fair share" union dues if they did not want to join the union. Unions represent almost all government employees in Illinois whether they want it or not. Those who don't join still have to pay dues to the union and accept their representation in areas like collective bargaining.

The state's attorney general, Lisa Madigan (a Democrat) is intervening in the lawsuit and asking it to be dismissed for lack of standing (Rauner notably pays no union dues). Rauner fully expected the move, according to Crain's.

But now in response, three state employees are attempting to join the lawsuit. They do pay union dues and want to stop. The three of the are represented by libertarian lawyer and scholar Jacob Huebert, senior attorney at the Liberty Justice Center. He announced the suit yesterday and filed the motion (pdf) in federal court. The three of them have so far paid more than $13,000 to the unions but are demanding it stop to "protect their First Amendment rights to free speech and association." According to the motion they object to "many of the Unions' policy positions, including positions taken in collective bargaining."

The battle is already turning into a complex mess in just a month, unsurprising, as we're talking about Illinois here. Rauner wants to handle the matter in federal courts, but the unions are trying to keep it in the state courts, where judges have been very friendly to union objections to pension reform. Here's how the Associated Press describes the situation:

Labor unions and Democratic Attorney General Lisa Madigan are asking the judge to dismiss the case. They argue the lawsuit doesn't belong in federal court, in part because Rauner's own First Amendment rights aren't being violated. They also say Rauner's actions violate state law, and filed a lawsuit of their own against the governor in state court in St. Clair County — the venue they say is most appropriate to settle the matter.

Rauner then filed in federal court in Illinois' Southern District, where St. Clair County is located, to have the case moved to federal court. But Yandle rejected the request Monday, saying the lawsuit only raises questions of state law.

Rauner wants the issue in federal court because he wants the U.S. Supreme Court to ultimately declare the dues unconstitutional, ending them throughout the country. Labor unions want the matter in state court because they don't want to risk a ruling with national impact.

Comments

[UnCivilServant]

I hope he wins. I want to stop paying PEF to advocate against my best interests (and for their far-left ideology)

[Hey Nikki!]

The three of the are represented by libertarian lawyer and scholar Jacob Huebert, senior attorney at the Liberty Justice Center.

Nice! I met Huebert several years ago at a Balko-based meetup, back when he was just getting started. I'm glad to hear his work has turned out so well.

[Hugh Akston]

nicole has plenty of stories about famous people that include her in some way.

[Swiss Servator... Switzy!]

She is the worst, Hugh.

[Episiarch]

Well, duh, Hugh, she is a starfucker. She's had sex with countless minor celebrities!

[Hey Nikki!]

I assume Balko is the famous person in that comment?

[Pl?ya Manhattan.]

You are. And by that, I mean infamous.

[Bo Cara Esq.]

"Those who don't join still have to pay dues to the union and accept their representation in areas like collective bargaining."

Dues or agency fees? I think you mean the latter.

[jay_dubya]

can you clarify the distinction?

[Mike A.]

The first is one word, and only four letters long.

[UnCivilServant]

can you clarify the distinction?

You see 'Agency Fees' are dues for people who don't get to vote in Union elections, but still have to pay, and still get subjected to bad union rules, especially workflow rules, time&attendence;, conflict resolution, etc. Basically it's "Pay us or pay us and join so we can inflate our membership numbers". If not for Agency Fees, the Union membership would be far, far lower than it is now.

[some guy]

Honest question: What has the SCOTUS found regarding "freedom of association" wrt the first amendment?

If we truly have "freedom of association" under 1A, then how can anything possibly be regulated under the Commerce Clause or any of the other usual cop-outs?

[John]

That is an interesting point. Closed shop states effectively force people to associate. The counter argument is that you are not forced to do anything since you don't have to take a job in a union shop.

[tarran]

he counter argument is that you are not forced to do anything since you don't have to take a job in a union shop.

I think that this, and the fact that unions are through elections of officers legally assumed to represent their members' views, will result in judges not buying the argument.

[Francisco d'Anconia]

I'm not taking a job with the union. I'm taking a job with the employer.

[John]

That is the counter argument to that. Which one you find compelling is up to you.

[MarkLastname]

Which is why ultimately I think mandatory union membership will have to be done away with by forcing the unions to take the state to the courts, not the other way around. Cities and states have to reserve the right to hire non-union employees and exempt them from the union dues. This puts unions in the position of having to defend conscription and/or extortion on their part.

Of course it doesn't matter anyway, most judges are just glorified politicians anyway so they'll vote the way that's convenient for them irrespective of the law.

[Bo Cara Esq.]

I think SCOTUS has only recognized a freedom of association, at least one that would trump laws like discrimination laws and such, when there's an 'expressive' purpose to the association.

[chevy706]

My ability to expressively negotiate my own wages and terms of employment is being infringed upon by the union which demands the terms of my employment for a corporation be dictated by the union. Can't really see a way around it.

Thank goodness I work in the private sector white collar world.

[tarran]

If we truly have "freedom of association" under 1A, then how can anything possibly be regulated under the Commerce Clause or any of the other usual cop-outs?

The freedom of association isn't really carved out in the first amendment. Mediating commercial transactions was one of the original raison d'etre for the U.S. government (and the state governments). Therefore the argument that the commerce clause represents the ceding of some freedom by the people to enable the government to protect them would get widespread support by judges.

If one believes otherwise (as I do) then logical consistency practically requires that one become an anarchist.

[Episiarch]

Logical consistency pretty much requires that in any case.

[Hey Nikki!]

Real.

[Pl?ya Manhattan.]

Do you go around smashing windows in Seattle?

/ducks

[tarran]

Only when the government refuses to dissolve itself after giving us free health care,

... and ponies!!!!

[John]

I would argue that the commerce clause was never intended to be a positive power for the federal government. The commerce clause only exists as a negative. It was created to prevent the states from regulating interstate commerce and enacting protectionist barriers against one another.

That of course is a bit of a reach. It is no more of a reach, however, than saying the commerce clause renders every other restriction on federal power moot.

[Bo Cara Esq.]

That's a funny way to word it then.

[John]

No more funny than creating an entire document of carefully crafted compromises and restrictions on federal power only to render all of those restrictions moot by writing the commerce clause. My interpretation is less ridiculous than that. My interpretation still gives the rest of the document meaning.

[Francisco d'Anconia]

No more funny than creating an entire document of carefully crafted compromises and restrictions on federal power only to render all of those restrictions moot by writing the commerce clause.

AMEN!

[Bo Cara Esq.]

No. Because what really makes the clause a mockery is Wickard, not Gibbons

[Dark Lord of the Cis]

Historically I don't think that's a reach at all. I once saw a Judge Nap speech(can't find it now) where he talked about the CC. He made a very good argument based on the recent history at the time of the constitutional convention and contemporary meaning of the word "regulate" that the sole purpose of the CC was to establish free trade among the states.

[Bo Cara Esq.]

It's odd to word what's alleged to be a negative power as an affirmative grant.

[John]

Not really. The framers didn't use "regulate" in the way it is used now. It only seems odd because you ascribe the word the meaning it has today. When it was written, it means something a bit different.

[Bo Cara Esq.]

Even if it meant 'to make regular' it would grant more than a purely negative power.

[MarkLastname]

Not necessarily. Is the suppression of affirmative irregularities in order to make regular affirmative or negative?

Your argument might be that if their intentions were purely to impart negative power, they would just prohibit states from interfering with trade instead; that would be simpler, rather than imparting positive power to the federal. However, it is quite probably that they were anxious about such a strong negative prohibition (or foresaw that there may on occasion be good reasons for states to interfere with trade); not to mention that they may have been catering to the states in the language, and states may get less anxious about the federal government being given power than about state governments having power taken away (even though in fact the two scenarios are the same). So the clause may well have been in the spirit of enabling the federal government to check state restriction on trade, but without prohibiting state rights to restrict trade entirely, which could have been an impossibility.

[Ivan Pike]

I would argue that the commerce clause was never intended to be a positive power for the federal government. The commerce clause only exists as a negative. It was created to prevent the states from regulating interstate commerce and enacting protectionist barriers against one another.

That is the way I have always read it.

[Emmerson Biggins]

If we truly have "freedom of association" under 1A

When we had Jim Crow, some places had freedom of association and some didn't. They fixed that with the public accommodation stuff in the Civil Rights Act. Now it's gone everywhere.

[Swiss Servator... Switzy!]

filed a lawsuit of their own against the governor in state court in St. Clair County ? the venue they say is most appropriate to settle the matter.

St. Clair County HAHAHAHAHAHA! The taint of Madison County asbestos and class action litigation has wafted over St. Clair County - the county one man bragged that he had bought 14 of the judges (unfortunately for him, the FBI had that on tape...heh heh heh).

[Pl?ya Manhattan.]

The other definition of taint also applies here.

[Swiss Servator... Switzy!]

Truly.

[John]

It is important to remember that all Scott Walker did in Wisconsin was stop forcing public employees to join the union. Any employee who wanted to was still free to do so. If public employee unions really served public employees instead of just serving as a forced tax on them to support union bosses and Progressive causes, the unions should not have taken much of a hit in membership. In fact of course, their membership dropped off a cliff.

[Bo Cara Esq.]

I don't think you could be forced to join the union but you could be forced to pay agency fees, and before Walker they were automatically deducted by the government.

[John]

True, but that is a distinction without difference. It is like me saying "I can't force you to go see the movie, but I can force you to buy the ticket to see it." What is the point of not joining if you are paying to be a member anyway?

[Old Man With Candy]

Don't feed the syndrome.

[Bo Cara Esq.]

It's more like this: if the neighborhood votes to have a homeowners association represent everyone there they can't make you join the association and pay membership dues but they can make you pay your part of the maintenance fees whether you want or like the maintenance or not.

[John]

Only if there is any difference between the dues that members and non members pay, which I don't think there is.

[Bo Cara Esq.]

There certainly is. Look up agency fee.

[Hey Nikki!]

There certainly is. Look up agency fee.

What difference is there other than whether they call you a member or not?

[Old Man With Candy]

John, seriously, by treating him as if he were normal, you delay him seeking help. There are plenty of intelligent people here to argue with that don't have an untreated condition.

Aspergers symptoms and treatments

[Bo Cara Esq.]

Again, it's plain to see who is exhibiting autistic symptoms here Old Man...

[Bo Cara Esq.]

http://www.autism.org.uk/livin.....tines.aspx

Obsessions, repetitive behaviour and routines can be a source of enjoyment for people with autism and a way of coping with everyday life. But they may also limit people's involvement in other activities and cause distress or anxiety.

[Old Man With Candy]

I think another possibility is that it's our old buddy MNG, disguising himself as an Asperger's sufferer.

[Bo Cara Esq.]

I've been Tulpa, Tony, 'joe' Mary and lately a politico regular. Whatever feeds the psychopathic sense of community self reference here

[BakedPenguin]

He seems even more annoying than MNG.

[Pl?ya Manhattan.]

Seems?

I think the sample size is great enough that we can declare it scientific fact.

[Francisco d'Anconia]

Ah, the...

I know you are, but what am I?

defense.

I'm sure his future clients will be more than satisfied with such a rigid legal defense.

[Old Man With Candy]

That impersonating a lawyer routine would be reprehensible in a normal person, but just pitiful for an Asperger's sufferer.

[Pl?ya Manhattan.]

Future clients?
Are we still pretending to believe that?

BTW, where are our graduation invitations?

[Bo Cara Esq.]

"BTW, where are our graduation invitations?"

I'm afraid your mothers exhausted my supply (among other things).

[Francisco d'Anconia]

Look what it does here, Playa:

One day Francis will get threaded comments. Right after mastering his VCR

Isn't that cute. It thinks I would take the time to respond to it, when in actuality I was replying to OMWC.

[Bo Cara Esq.]

One day Francis will get threaded comments. Right after mastering his VCR

[MarkLastname]

Why not take this thinking to its logical conclusion? If I and some friends of mine form a group and purport to do something that benefits you, we can tell you to join or send you a bill, because, after all, you benefit (supposedly), so even if you don't join, by right, you should pay some of the expenses.

Imagine the CEOs of a bunch of big companies decide that you have to join their book club if you want to keep your job, and pay book club expense even if you don't.

Conscription (of any kind, not even just military) is also justified: you either submit to conscription for , or, if you don't want to, no problem, just pay deemed to be equal to the cost of the mandatory service. But you still have have a choice, not really.

[mad.casual]

I don't think you could be forced to join the union...

Maybe you haven't been to Chicago?

[Apatheist ?_??]

FREE RIDERS!!!! is the usual excuse.

[John]

Yes it is. That or course is ridiculous. If nothing else, the Union provides representation to you and a grievance process if your boss tries to screw you. Moreover, not everyone is incapable of seeing an acting on the larger picture. If the union is really that essential, sure some won't join but most will.

[Bo Cara Esq.]

The union has to provide those things to all covered by the collective bargain whether members or not. That's the justification given for having to pay the agency fees but not memember dues

[John]

They don't have to provide representation to non members. So, no they don't have to provide everything in the contract.

[Bo Cara Esq.]

With all due respect you seem quite misinformed on this subject.
http://www.nrtw.org/a/a_1_p.htm

[Bo Cara Esq.]

You don't have to perpetuate in accurate information about how unions work for them to look bad.

Imagine if it were the case that if a bare majority of homeowners in your neighborhood could force you to be 'represented' by an association and agent. The fact that they couldn't compel you to fully join the association would be small consolation to any self respecting individual

[MarkLastname]

Bo, just because one's actions benefit someone other than oneself does not entitle one to monetary compensation from others said actions benefit. A guy who invented a drug that cures a terminal illness is not entitled to go demand everyone cured of that disease give him however much money he decides their lives are worth.

So non-union employees can benefit from union activity. So what? End of story. Mandatory fees are not justified by the presence of a positive externality. They aren't anywhere else, why should they be in public sector unions?

[Riven]

Exactly. I see no reason they couldn't bargain for, say, the wages and benefits of only union employees.

[Bo Cara Esq.]

It's against the NLRA for them to do so

[jay_dubya]

if thats the case, sounds like a reason to invalidate NLRA rather than steal from those who dont want to be involved

[Francisco d'Anconia]

How is this even a thing? How can someone be forced to buy a product?

[Episiarch]

You mean like health insurance?

[Francisco d'Anconia]

That's a tax. 😉

Seriously, there is no penaltax excuse here. This is the government forcing you to eat broccoli. To work for x, you must buy a service from y. (the not stated portion: So y will support us politically)

[Jerry on the sea]

You not joining a union clearly has price effects on the labor costs of other employees around the country. See Wickard v. Filburn.

[Francisco d'Anconia]

Prove it.

[Francisco d'Anconia]

And so does not buying a car from GM...can they make me buy a GM car?

[Dark Lord of the Cis]

You and I bought a lot more than a car from them.

[MarkLastname]

I just planted a tree in your front yard, without asking you if you wanted me to. Now pay me $50,000 for said tree.

See how that works? Conference of a positive externality does not justify extortion.

[John]

Paging Mr. Calrissian. Mr. Lando Calrissian.

http://www.popularmechanics.co.....p&click=yr

[mad.casual]

Thank you, John!

Now I just wish I had written down where all the asshats were that told me I was stupid to think we'd colonize Venus before we colonized Mars.

I'm sure the IQ levels around these parts are too high (OK, maybe just the general level of skepticism). I think I need to go check my Ars Technica posting history.

[tarran]

Those things are death traps!!!!!!!

Seriously, the reason why there is no big airship industry isn't prejudice as a result of the Hindenburg disaster. It's because those things get shredded by storms, and aren't fast enough to avoid weather bearing down on them.

At least on Earth, a blimp pilot can't try for an emergency landing. On Venus? Might as well just shoot ourselves to avoid the pain of the long dive into a sulfuric acid pervaded high-pressure hell.

[Francisco d'Anconia]

Might as well just shoot ourselves to avoid the pain of the long dive into a sulfuric acid pervaded high-pressure hell.

SEE WHAT CO2 DOES TO A PLANET!!!!111TENPLUSONE111

[Tonio]

Also, airships are very much subject to wind when they are landing or taking off. If they could stay airborne indefinitely and use shuttlecraft or really tall mooring masts...

[MarkLastname]

Let's build a space elevator!

[MJGreen]

Unions represent almost all government employees in Illinois whether they want it or not. Those who don't join still have to pay dues to the union and accept their representation in areas like collective bargaining.

Insolent workers. Don't they realize that unions are the greatest defense against exploitation by monopolies??

[Emmerson Biggins]

I've got an idea.

Everybody who thinks that the distinction between an "agency fee" and a "union due" is in any way at all important to this case or even vaguely interesting, please respond to this post. Then "we" can hash out why it's either important or interesting.

[Bo Cara Esq.]

I don't think a person should be compelled to pay either. But they're still not the same thing and the difference negates some lines I've seen here. The 'free ride argument, for what it's worth, plays out differently for example if the distinction is recognized.

[Hey Nikki!]

You haven't explained anything relevant about the difference; you have only cited the two different terms.

[Bo Cara Esq.]

The link I supplied up thread to John explains it. To summarize, the agency fee is to cover the time/expenses the union incurs in negotiating and policing the collective contract, and these efforts have to be extended to all employees in the workplace union or not. Union dues in contrast can be used to pay for things not involving the contract.

[Bo Cara Esq.]

So the argument is that if the agency fee is waived employees still have to be represented but they did not pay, hence free rider.

Of course I think the main point is that you don't get to represent me if I don't want it, but I recognize the free rider argument plays out differently given the distinction and accompanying duties.

[MichaelL]

Funny thing, when I commented that my dad was placed in the union, after he retired, without his permission (in Illinois), one of the other commenters called me a liar! I guess the truth came out! I am going to try to get in touch with those lawyers!